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Criminal Revision Application No. 49 of 1962, decided on 28th March 1963.

S. 522‑Force not used at time of commission of offence‑Order restoring possession not called for‑Accused, however, taking possession after breaking lock of house‑Order passed by Magistrate under S. 522 restoring possession, held, justified.

Narain Singh and another v. Panna Lal A I R 1940 Lah. 460; Daw Mya and another v. Emperor A I R 1937 Rang. 248 and D. K. Aswatha Narayana Gupta v. J. Muneppa and others A I R 1943 Mad. 257 ref.

S. 522‑Evidence supporting title of complainant in whose favour order of restora tion of possession passed by Magistrate‑Accused acquitted in appeal‑Order of restoration to complainant need not be disturbed.

Abdul Ghani v. The Crown P L D 1950 Lah. 154 rel.

Anwarul Hassan for Petitioners.

M. Saleem Aslam Pirzada and Ch. Farzand Ali for Respondent.

This order will dispose of Cr. Revision 49/62 BWP and 57/62 BWP. Haji Mahmood petitioner and his son Allah Diwaya were convicted on the 16th of March 1962, for an offence under section 453, P. P. C. by the Magistrate 1st‑Class, Ahmadpur East. The conviction was set aside on appeal by the learned Sessions Judge, Bahawalpur, by his order dated the Ist of June 1962.

2. Mr. Akhtar Ali complainant applied to the trial Magistrate on the 2nd of April 1962, for the possession of the house being delivered to him under section 522, Cr. P. C. The learned Magistrate accepted his prayer and ordered on the 16th of April 1962, for the possession being delivered to him. This order was duly executed and the possession was delivered to Mir Akhtar Ali complainant. This order of the learned Magistrate was challenged by means of a revision in the Court of the learned Sessions Judge, Bahawalpur. The revision petition was dismissed on the 1st of June 1962, and the learned Sessions Judge refused to restore the possession of the house in dispute to the petitioner. The learned Sessions Judge has remarked in the order that "the present petitioners admitted in their statements under section 342, Cr. P. C. that the house in dispute had been built by the complainant's father, Mir Ashraf Ali somewhere in 1932, and that they had been occupying the house with Mir Ashraf Ali's permission. So there appears to be no case of adverse possession and this being so, the position of the petitioners was of mere licensees. Consequently, I do not find it necessary to issue any process for restoring possession of the house to them as they seem to have no legal right to possession as against Mir Akhtar Ali, the owner". Haji Mahmood has challenged these two orders by means of this Revision Petition No. 49/62 BWP.

3. I have heard the learned counsel for the petitioners. The learned counsel has raised two contentions in this petition. Firstly, that there was no evidence that any force was used against Mir Akhtar Ali at the time of the alleged commission of the offence. Consequently no order under section 522, Cr. P. C. was called for. Secondly that the conviction having been set aside the order restoring the possession should also have been vacated and the possession delivered back to the petitioners. The learned counsel has cited Narain Singh and another v. Panna Lal (A I R 1940 Lah. 460), Daw Mya and another v. Emperor (A I R 1943 Mad. 257) and D. K. Aswatha Narayana Gupta v. J. Muneppa and others (A I R 1943 Mad. 257) in support of his first contention. The wordings of section 522 Cr. P. C. are clear on this point, because it lays down "whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property, the Court may, if it thinks fit when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same". The same is the ratio of the third ruling that has been cited by the learned counsel. However, there is evidence in this case that Mahmud petitioner and his son Allah Diwaya had taken possession of the house in dispute after breaking open the lock. Ghulam Sarwar (P. W. 3), Muhammad Akbar (P. W. 4) and Ghulam Qadir (P. W. 5) have deposed to this effect. The house in dispute had been in possession of Qadir Bakhsh P. W. 2 as a tenant under Mir Akhtar Ali. He has stated that when he vacated the house he informed Mir Akhtar Ali of this fact. Even if the petitioner was acting as an agent of the owner he had no right to take possession of the house as against the will of the owner. In these circumstances I consider that the order passed by the trial Magistrate restoring possession to the owner was justified. As regards the second contention of the learned counsel, I have a direct authority for my guidance which is Abdul Ghani v. The Crown (P L D 1950 Lah. 154). It has been laid down in that case "there is a clear evidence of the title of the property in favour of the complainant in whose favour an order of restoration of possession under section 522, Cr. P. C. had been passed the High Court would refuse to restore possession to the accused even if they were acquitted". In the present case it is not disputed that the house in dispute had not been in possession of the petitioner. Qadir Bakhsh (P. W. 2) who has been occupying this house for a large number of years admitted that he was occupying it as a tenant of Mir Akhtar Ali. The ownership of the house undisputedly belongs to Mr. Akhtar Ali, Haji Fazal Ahmad (D. W. 1) and Muhammad Hussain (D. W. 2) admitted that the house belonged to Mir Akhtar Ali. The case as put forth by the petitioners was that the house had been in occupation of Qadir Bakhsh (P. W. 2) but that he used to manage this property on behalf of the complainant. After Qadir Bakhsh vacated it he took its possession. The possession of Haji Mahmood in these circumstances, would not in any case, be better than an agent of Mir Akhtar Ali and the agent cannot refuse to permit the tenant of the owner to occupy it. If he does so, then he is acting against his principal and if he used force in asserting his own possession adverse to the owner he is clearly guilty of an offence. In view of these circumstances, I consider that it is not a case in which the High Court in spite of the fact that the petitioner had been acquitted would exercise its discretion in favour of a person who is dishonest in his actions. The revision petition is, therefore, dismissed.

4. In view of what has been stated above, I consider that the order of acquittal passed by the learned Sessions Judge is not justified. However, since there is no appeal challenging the acquittal of the respondents I do not consider it a fit case to set aside the order of acquittal and order a retrial. The Revision Petition No. 57/62 is also dismissed.

K. B. A. Petition dismissed.

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